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Wednesday, July 11, 2012

BREAKING: Speculation About the Supreme Court!

David Kopel has provided what he calls a bar-review-style summary of NFIB v. Sibelius. (This trend of major litigation filed against famous classical composers worries me a little, incidentally.) I thought his ending was worth noting:

If recent media reports are true, then the second Justice Roberts is the Justice who really did abandon what he considered to be a correct interpretation of the law, submitting to the threats of a President who attempted (this time successfully) to coerce the Supreme Court of the United States.

It seems to me the weak points in this analysis are that the reports didn't say that, that this is rather an extreme use of the word "coerce," and that if this is what counts as coercion then it is fairly routine. (Kudos to the commenter on another post at VC who wondered, a la Monty Python and the Holy Grail, if the President would threaten to "taunt" the Court "a second time.") Still, all that is covered by using the "if true" lead-in, right? So I agree: If all this is true, it is truly shocking.

I don't think that there's any serious basis for the notion that Roberts "saved under pressure"; his outcome in Sebelius is of a piece with his approach to previous cases, as both Jonathan Adler and I have previously noted, and even if one wanted a narrative that includes some kind of pressure or darke dealings, the severability theory strikes me as far more plausible.

(2) I think the oddest thing about Kopel's post is that it's supposedly a "bar review" summary of the case. To all the folks getting ready to take various bar exams across the country, please note that whether you buy this sort of political conspiracy theory or not*, you are not going to get any points from bar examiners for including it in your bar exam answers. Oh, and good luck!